American Trucking Associations v. U.S. Dept. of Transp., s. 97-1668
| Decision Date | 12 February 1999 |
| Docket Number | 97-1680,Nos. 97-1668,s. 97-1668 |
| Parties | Fed. Carr. Cas. P 84,083, 334 U.S.App.D.C. 246 AMERICAN TRUCKING ASSOCIATIONS, INC., et al., Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Federal Highway Administration, and United States of America,Respondents. Petroleum Marketers Association of America, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petitions for Review of an Order of the United States Department of Transportation.
Erika Z. Jones argued the cause for petitioners American Trucking Associations, et al. With her on the briefs were Daniel R. Barney, Lynda S. Mounts and Harold S. Reeves.
Anthony J. McMahon argued the cause and filed the briefs for petitioner Truckers United for Safety. Mary Beth L. Jackson entered an appearance.
Edward R. Cohen, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Frank W. Hunger, Assistant Attorney General, and Robert S. Greenspan, Attorney. E. Roy Hawkens, Attorney, entered an appearance.
Robert S. Bassman and Alphonse M. Alfano were on the brief for intervenor Petroleum Marketers Association of America.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
The petitioners in this case, the American Trucking Associations ("ATA") and Truckers United for Safety ("TUFS"), challenge a rule promulgated by the Federal Highway Administration ("FHWA") amending the regulations governing the assignment of safety fitness ratings to motor carriers. The ATA claims that the amended regulations are contrary to law, are arbitrary and capricious, and were adopted without adequate consideration of comments. TUFS claims that the rule is invalid because it fails to discharge all the duties assigned the agency by the governing statute. Intervenor Petroleum Marketers Association of America raises still further complaints. We reject all these challenges. In addition, TUFS petitions us to vacate all existing safety fitness ratings. We find that TUFS lacks standing to pursue this claim. We thus deny the petitions on all counts.
The Motor Carrier Safety Act of 1984, as amended,instructs the Secretary of Transportation to prescribe regulations establishing a procedure for determining the safety fitness of owners and operators of commercial motor vehicles. See 49 U.S.C § 31144(a)(1). The Secretary has delegated responsibility under this provision to the FHWA, which exercised it in 1988 by adopting Safety Fitness Procedures. See 53 Fed.Reg. 50,961 (1988).
In MST Express v. Department of Transportation, 108 F.3d 401 (D.C.Cir.1997), we held that the FHWA's 1988 action had failed to meet the statute's requirement of establishing its safety fitness rating methodology by regulation. Too much of its methodology was stated in its Safety Fitness Rating Methodology ("SFRM"), which was merely part of its Motor Carrier Training Manual and had not been adopted by notice-and-comment rulemaking. Id. at 406. The FHWA responded by issuing the rule challenged in this case, incorporating a nearly identical SFRM as an appendix to the Safety Fitness Procedures. 62 Fed.Reg. 28,826, 28,826 (1997). The alleged inadequacy of the SFRM is the gravamen of most of the petitioners' challenges.
The SFRM states a procedure for assigning a motor carrier a safety rating of "satisfactory," "conditional," or "unsatisfactory." The rating depends on the carrier's ratings in six specific "factors."
Five of these factor ratings are based on compliance with safety regulations in various areas--"general," "driver," "operational," "vehicle," and "hazardous materials." 49 CFR App. B, 62 Fed.Reg. 60,035, 60,045 (1997). The ratings for four of these--all but the vehicle factor--are determined by a "compliance review" of the carrier's documents by FHWA inspectors. Id. at 60,044-45. The rating for the vehicle factor is based at least in part on document review, and can also be affected by the results of roadside inspections. Id. at 60,044. The rating for the sixth factor, accidents, is determined by the carrier's accident rate. Id. Each factor is rated on the same scale as the overall rating (satisfactory, conditional, or unsatisfactory), and the six individual factor ratings are combined into an overall safety rating according to the following table:
MOTOR CARRIER SAFETY RATING TABLE
---------------------------------------------
Factor ratings Overall safety
rating
---------------------------------------------
Unsatisfactory .. Conditional
---------------------------------------------
0 ............... 2 or less Satisfactory
0 ............... more than 2 Conditional
1 ............... 2 or less Conditional
1 ............... more than 2 Unsatisfactory
2 or more ....... 0 or more Unsatisfactory
---------------------------------------------
49 CFR 385 App. B.
We describe specific aspects of the SFRM in more detail in the discussion of each challenge.
The ATA's first claim is that the rule fails to comply with the statute, principally for want of what ATA regards as statutorily mandated specificity. When the present rule was issued, and when this action was brought, the relevant statutory provision was contained in 49 U.S.C. § 31144(a)(1), which instructed the Secretary to "prescribe regulations establishing a procedure to decide on the safety fitness" of carriers, including a "means of deciding whether [carriers] meet the safety fitness requirements under clause (A)," which in turn called for "specific initial and continuing" safety requirements. Id. Although none of the parties mentioned it in briefing or oral argument, 49 U.S.C. § 31144 was amended by the Transportation Equity Act for the 21st Century ("1998 Act"), § 4009(a), Pub.L. No. 105-178, 112 Stat. 107, 405-07. The requirement at stake here is reformulated as § 31144(b) and now demands that the Secretary "maintain by regulation a procedure for determining the safety fitness" of carriers, which must include "specific initial and continuing" safety fitness requirements and a "methodology the Secretary will use to determine" whether carriers are fit. Id. As we develop below, the change has no effect on the outcome.
In its specificity claim, ATA points out that the SFRM decrees neither how many documents a Safety Investigator is to examine nor how the investigator is to select the documents he or she does review. ATA reads MST Express as saying that the statute requires that all procedures used in assessing safety fitness be "completely contained" in the regulations, so as to enable carriers to "predict," "ascertain in advance," or "determine from looking at the current regulations," the safety ratings they will receive if inspected.
Whether the FHWA's regulations satisfy the statutory directive is a question of statutory interpretation, one the FHWA has answered by adopting the regulations in question. Under the familiar test of Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), assuming Congress has not "directly spoken to the precise question at issue," id. at 842-43, 104 S.Ct. 2778, we defer to the agency's interpretation if it is "based on a permissible construction of the statute," id. at 843, 104 S.Ct. 2778. The Chevron test applies to issues of how specifically an agency must frame its regulations. New Mexico v. EPA, 114 F.3d 290, 293 (D.C.Cir.1997).
Here neither the 1984 Act's term, "means of deciding," nor that of the 1998 Act, "methodology," could possibly be said to speak directly to the necessary degree of specificity (at least in any sense adequate to condemn the present regulations). Nor does the statutory mandate that requirements be "specific" illuminate the degree of specificity required. Thus, we turn to the question of whether it is reasonable to call the procedures a "means of deciding" whether carriers meet "specific" safety fitness requirements (1984 Act) or a "methodology for determining the safety fitness" of carriers (1998 Act), again with reference to "specific" requirements. In a series of cases we have explicitly accorded agencies very broad deference in selecting the level of generality at which they will articulate rules. See New Mexico v. EPA, 114 F.3d at 294; Metropolitan Washington Airports Authority Professional Fire Fighters Ass'n v. United States, 959 F.2d 297, 300 (D.C.Cir.1992); Natural Resources Defense Council v. EPA, 907 F.2d 1146, 1165 n. 16 (D.C.Cir.1990).
In fact the SFRM is highly specific, as we noted in MST Express. There, contrasting it with the far more limited treatment of the method for assigning ratings in the Safety Fitness Procedures, we said that the SFRM "provides FHWA inspectors with detailed guidelines for deriving a motor carrier's safety rating." 108 F.3d at 403. It enumerates the specific safety regulations that are considered in a compliance review, divides them into "acute" and "critical" categories, 1 notifies the carrier of the types of records that are reviewed for compliance, and explains exactly how detected violations of acute and critical regulations are combined into an overall safety rating.
Yet ATA is certainly correct in claiming that the SFRM fails to specify how many documents are examined for compliance or how the documents that are reviewed are selected. But that gap hardly compels a finding that it fails to meet the specificity requirement of the statute as construed in MST Express. Indeed, that case implied that the SFRM did satisfy the statutory mandate, observing that "it is not apparent from the regulations--as opposed to the SFRM--under what circumstances a carrier should expect to receive a conditional or an unsatisfactory rating." 108 F.3d at 406. At the time of this accolade the SFRM...
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